CA Supreme Court: Prop 8 Supporters Can Appeal

Jim Burroway

November 17th, 2011

The California Supreme Court has ruled that when state officials decline to defend a proposition, the proposition’s official proponents have legal standing to appeal (PDF: 343KB/72 pages):

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative. …

So now the appeal of the lower court’s ruling that Prop 8 is unconstitutional goes forward in the Ninth Circuit Court of Appeals.

Ben In Oakland

November 17th, 2011

It seems like a good thing, since they failed to provide even the hint of a case. Appealing their non-case and Blankenhorn’s admission that it is all hooey cannot work for them.

Christopher Eberz

November 17th, 2011

They have to know they don’t have a case in the 9th circuit. From their perspective, the reason this is good news is that upon having their appeal denied, they can appeal further to SCOTUS, where it’s safe to assume they have a better chance (considering the makeup of the current bench).


November 17th, 2011

They don’t even have a chance in the Supreme Court. There is a very reliable 5/4 split on the issue of gay rights, and even then there is much speculation that one of the other 4 will side with us.

Lindoro Almaviva

November 17th, 2011

and on to yet another humiliation. Do these people not get used to the beatings? Well, at least for today, they can celebrate. The time for the crying and gnashing of teeth will come in due time.

Mark F.

November 17th, 2011

Not to brag, but I predicted a 7-0 decision. Despite having 2 brilliant lawyers arguing for it, the case against standing was weak.

Anyway, I think it is good that the case moves forward. However, I’m not sure how the SCOTUS will come down. I don’t know that there are 5 solid votes.

Regan DuCasse

November 17th, 2011

It’s not surprising that they are going to count on the 6 Catholics on SCOTUS to rule in their favor based on the same beliefs and personal biases that they share.

If SCOTUS were going to be truly honest, then NONE of our opponent’s arguments are valid in the law.
1. There is no legal basis to deny marriage to a gay couple based on NON parenting.

2. There isn’t one in the law on the basis of PRESUMED gender based characteristics, and not individuals ones. There is no legal way to ENFORCE gender characteristics or the function of body parts. Especially in the intention or qualities of raising children.

3. There is no religious, moral or competence test for marriage or child rearing. So excluding gay couples on THAT basis has no precedent in the law to enforce against gay people ONLY.

4. The Constitutional protection for minorities against tyrannical majorities would be seriously compromised with a decision against gay people.
5. Individuals are free to establish a family WITHOUT benefit of marrying. Marrying is wholly an individual choice, with or without children.

6. Heterosexuality, is simply a characteristic a majority of people have, there IS no moral definition of it. Yet heterosexuals are free to marry someone who SHARES their characteristic.
There is no rational reason in the law to exclude gay people from marrying someone who ALSO SHARES the same CHARACTERISTIC.

7. The four basic essential standards to legally marry CAN be met by gay people AS WELL AS op sex people, and MUST. Again, another example of NO REASON to discriminate against gay people.

Our opposition tries to forget those simple standards, and uses arguments that can or should apply to both gay and straight couples.
In the end, it either has to be EQUAL discrimination on their on argument’s basis, or equal rights.

Setting up different standards EXCLUSIVELY for gay people not only is unfair, but wrongful and UNWORKABLE too.

Mark F.

November 17th, 2011

Well, SCOTUS can rule against gay marriage on the basis that there is some “rational basis” against it, however far fetched, a standard that almost any law can and has passed.

But Regan does point out we have lots of good arguments.


November 17th, 2011

You know what? This is probably our best shot at getting a nation-wide ruling we’re gonna get outside of a democratic congress getting elected in 2012. How likely is it that we’ll get better attorneys on our side and such a carefully crafted argument against such a badly worded one? I’m glad this is going to the SCOTUS.

Timothy Kincaid

November 17th, 2011

To touch on what all have said above, two thoughts occur to me:

1. This is a case about penises and vaginae. Literally. Leave the “who has a penis” issue out, and there is no dispute.

They aren’t arguing that marriage is for people with parenting degrees or for people who have economic excess (or need) or for any other divisions. They are arguing that marriage be defined by genitalia.

And, ironically, they insist that we are the ones obsessed with sex.

2. SCOTUS has to be careful. If they rule against us, this will become another Dred Scott case. These justices and the SCOTUS will be known as defenders of prejudice and preference and for placing the status quo ahead of the principles of the Constitution.

The future is predictable on that: social mores and values have shifted to over 50% and the tipping point is long past. A decision against equality will be a mar on the court and on each individual justice forever. It will invalidate any credit that the court or the jurists may have earned and put at question any wisdom demonstrated.

I think we may be too accustomed to inequality to truly see how this decision will be viewed by the next generation. I think that this is one of the most significant legacy-establishing decisions that these particular judges will make.


November 17th, 2011

Does anyone know what the basic timetable is, and at what point we can expect this to reach SCOTUS? Hopefully, if Obama loses in 2012, there won’t be a change in the make-up in the court before they have a chance to rule. I believe Olson when he says “I can count to five”, and that Kennedy is with us. (I hope, anyway).

Ben In Oakland

November 17th, 2011

“Will you chip in to fight today’s opinion and make sure the 9th Circuit rules in our favor?”

I just got this from Courage Campaign, and it pisses me off. It sounds just like NOM to me.

Giving them money may well be a good idea, but will neither fight today’s ruling nor make sure about the 9th’s ruling.


November 17th, 2011

I hope Scalia croaks and/or Thomas is impeached before this case reaches the Supreme Court.


November 17th, 2011

SCOTUS does not rule on fears of legacy. What’s important to a judge is that they feel they fulfilled their duties properly.

The California SC does not have any trouble sleeping after denying a challenge to Prop 8, simply because the case was weak. A SCOTUS decision against marriage equality is done with no qualms because to the judges, they considered the merits of a case. People will always disagree, and the judiciary isn’t about popularity contests.

The dead can’t bring themselves to care for the posthumous opinion of their work. Unless we’re working off an assumption of a continued existence of consciousness after the fact.

Timothy Kincaid

November 17th, 2011


Courage Campaign played no role whatsoever in fighting today’s decision or in Perry…

they have, however, been very very useful and informative in providing close following of the court drama and in live blogging everything. Very good work, but they should have taken credit for what they did, not for what AFER is doing.

Ben In Oakland

November 17th, 2011

I know that, Timothy. I just did not like the basic dishonesty of their appeal.

Timothy Kincaid

November 17th, 2011


I’m working off the assumption that a court decision on Perry which finds that gay people are not full citizens or entitled to equality under the federal constitution will be considered shocking and bigotry of its worst form within a decade or so.

Some of the justices, Roberts for example, are young enough that such a decision would haunt him for decades.

O’Connor was in the uncomfortable position of having to craft some non-change change of opinion on Bowers / Lawrence. She retired soon after. I don’t think she’s quite forgiven herself.

And this will be – I predict – a much much larger and more important legal precedent.

Mark F.

November 17th, 2011

Well, even Clarence Thomas was somewhat embarrassed by the Texas sodomy law case and declined to go into any anti-gay rhetoric in his very short dissent, unlike Scalia.


November 19th, 2011

This is very good news. The ninth circuit will clearly uphold the lower court decision and probably without much delay. The Supreme Court probably will not waste time on it either and make it a priority. I would not be surprised to see a 6-3 or 7-2 decision in our favor on the court. The Supreme Court is not worried about what people down the road a decade later will say about their decision because it might appear bigoted. However, they ARE worried that it might appear illegal! They are most certainly vested in the appearance of the court and the image they want to uphold is that they governed on a rational basis and in consideration of the spirit of our Constitution. The reality here is that the Prop 8 proponents have no real case. It would be nothing short of astonishing if they ruled against the lower courts on this. In fact, it would be so astonishing it would be worth opening an impeachment inquiry on the justices who voted to uphold it. I’m sure Olsen and Boies will use Scalia’s own words when it comes to the issue: Striking down the sodomy laws leaves no legal barrier to gay marriage. The real question will be to see if Scalia sticks to his own logic.


November 21st, 2011

If this goes to the SCOTUS, someone needs to remind them that marriage is a civil right, established in Loving v. Virginia.

Timothy Kincaid

November 21st, 2011

WMDKitty, someone should sit Clarence Thomas down and have a frank discussion about Loving v. Virginia. Prior to Loving, Thomas couldn’t have married his wife Ginni in the state for which she’s named.

But, if I were to gamble, I’d bet on Thomas confirming the rights of States to discriminate against gay people. However, I think he’d oppose the ‘no faith or credit’ clauses of anti-marriage amendments.

Timothy Kincaid

November 21st, 2011


I don’t think we have any reason to believe that “the ninth circuit will clearly” do anything at all.

The Ninth Circuit tossed the Log Cabin anti-DADT ruling out the window without even considering that it addressed issues which the repeal of DADT has not and that, unlike the DADT change, it dealt with constitutionality rather than “what the law is today”. And about the only anti-marriage precedent that anyone can point to comes from the Ninth.

They really are not the Liberal Activist Judges that the right wing likes to paint them as.

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